ELLIS v. CHAO

The opinion of the court was delivered by: SIDNEY STEIN, District Judge

OPINION AND ORDER

Plaintiff Patrick Ellis challenges the decision of the
Secretary of the United States Department of Labor to dismiss
Ellis's administrative complaint alleging fraudulent activities
in the February 2000 statewide election for officers of the Civil
Service Employees Association (the "CSEA"). Ellis seeks a
declaratory judgment voiding that election as well as an
injunction directing the Secretary of Labor to conduct a new
statewide election for CSEA officers in New York. Because this
Court finds that the Secretary's decision to dismiss plaintiff's
complaint was not "arbitrary, capricious, an abuse of discretion
or otherwise not in accordance with the law," her motion for
summary judgment is granted.

Shortly after this litigation was commenced in 2001, the
parties cross-moved for summary judgment; this Court granted
summary judgment to the Secretary and denied plaintiff's motion
as well as his request for leave to amend the Complaint. See
Ellis v. Chao, 2001 WL 1550809, 169 L.R.R.M. 2016 (S.D.N.Y.
Dec. 5, 2001). The United States Court of Appeals for the Second
Circuit subsequently affirmed the denial of summary judgment to
Ellis, but vacated and remanded the grant of summary judgment to
the Secretary as well as this Court's denial of Ellis's motion to amend. See Ellis v.
Chao, 336 F.3d 114 (2d Cir. 2003). Upon remand, the parties have
once again cross-moved for summary judgment.

I. BACKGROUND

Three candidates vied for the position of president of the
statewide CSEA organization in the February 2000 election: the
incumbent Danny Donohue and two challengers  plaintiff and Bill
Walsh. Pursuant to a contract with CSEA, True Ballot, Inc. was
responsible for the design, printing and mailing of the ballots,
collecting and securing the returned ballots, and tallying the
votes. True Ballot in turn contracted with NewKirk Products, Inc.
to print ballots designed by True Ballot and to mail those
ballots to CSEA members. The ballots were sent to union members
in January of 2000.

On February 8, 2000, True Ballot obtained the returned ballots
from Trustco Bank  the custodian of those returned envelopes 
and began the vote tallying process. For this exercise, a
conference room was reserved in an Albany hotel. Plaintiff and a
number of individuals associated with the other candidates were
present as observers to monitor the vote tallying. As True Ballot
made an initial automatic tally by scanning the returned ballots,
monitors in the conference room showed projections of the
election results. Apparently based on one such projection, a news
release was issued on February 9 that the incumbent Donohue had
been re-elected with 51% of the votes. At that time, the
projection showed that Ellis had come in second with
approximately 15,000 votes.

As the tallying process progressed, True Ballot discovered that
the vote count had become skewed due to systematic misreading by
the scanning machines, apparently the result of mistakes in the
design and printing of the ballots. After consultation with the
election committee, True Ballot undertook various corrective
measures, including recounting the votes manually. Because CSEA had to vacate the conference room,
the manual tally was halted on February 10 and resumed on
February 22 at the same location.

The entire tallying process, including an audit of the results,
was completed by February 25, when True Ballot provided the
election results to the election committee: Donohue, the
incumbent, had been re-elected with more than 19,000 votes,
plaintiff received approximately 14,000 votes and Bill Walsh
received approximately 3,000 votes.

Through his observations, Ellis believed that the tallying
process had been infected with a number of improprieties,
including unreasonable restriction on the observers' right of
access and failures to comply with relevant protocols. Ellis
filed four internal protests with CSEA's statewide election
committee (the "election committee"), alleging various violations
of CSEA's electoral procedures and of the provisions of the Labor
Management Reporting and Disclosure Act (the "LMRDA"),
29 U.S.C. § 401, et. seq. and regulations promulgated thereunder,
29 C.F.R. § 452, et. seq. The election committee dismissed all
four protests in a March 14 determination sent to Ellis.

Plaintiff then filed a complaint with the Office of Labor and
Management Standards of the United States Department of Labor,
seeking a review of the election pursuant to 29 U.S.C. § 482(a).
That provision permits a union member who has exhausted his
internal union remedies to file a complaint with the Secretary of
Labor, who must then conduct an independent investigation of the
union member's complaint. See 29 U.S.C. § 482 (b), 521. Ellis
alleged numerous violations of the LMRDA, including improper
ballot design and mailing, Walsh's receipt of unlawful funding,
restriction on observers' right of access, errors in vote
tallying, and the failure of the election committee to monitor
and control the conduct of the election. Ellis's complaint was
subsequently dismissed for the reasons provided in a "Statement of Reasons for Dismissing the Complaint of Patrick
Ellis concerning the Election of Union Officials of the CESA"
(the "Statement of Reasons").

This action was then commenced, seeking a declaratory judgment
as well as an injunction directing the Secretary to bring a civil
suit to compel a new election pursuant to 29 U.S.C. § 482(b). As
noted above, summary judgment was granted to the Secretary. Upon
appeal, the Second Circuit found that the Secretary's Statement
of Reasons was "obviously conclusory" and "not sufficient for
[the court] to be able to determine whether the Secretary's
[decision was] arbitrary and capricious." See Ellis v. Chao,
336 F.3d at 123. Specifically, the Second Circuit noted that
Secretary had failed to provided explanations as to why certain
substantiated allegations, such as the restrictions of observers'
rights, could not have altered the outcome of the election,
failed to describe the investigation her agency undertook, failed
to provide a verified final vote tally, and failed to address
certain allegations asserted by plaintiff, such as the improper
exclusion of over 2,000 votes. See id., 336 F.3d at 124. As a
result, the Second Circuit remanded the action and directed this
Court to require the Secretary to present a more substantive
statement of reasons "explaining not only what the Secretary's
ultimate determination was, but also the process that led to, and
the basis for, that decision." See id., 336 F.3d at 127.

Approximately eight months after the remand, the Secretary
issued a "Supplemental Statement of Reasons for Dismissing the
Complaint of Patrick Ellis Concerning the Election of Union
Officers of the CESA" (the "Supplemental Statement of Reasons"),
which sets forth defendant's factual findings and conclusions in
greater detail. It contains findings both as to the accuracy of
plaintiff's allegations and as to their sufficiency. In the first
category, it states that the Secretary's investigation only
substantiated five of the allegations asserted by Ellis and found 11 allegations to be inaccurate. And as of those five
allegations substantiated in the investigation, she found that it
was improbable that any of them could have affected the outcome
of the election. Consequently, the Secretary concluded that she
did not have a statutory duty to initiate a civil action to void
the February 2000 election because "there was no violation of
[29 U.S.C. § 481] that may have affected the outcome of the
election." See Supplemental Statement of Reasons ("Supp.
Stmt.") at 16.

II. THE SUMMARY JUDGMENT STANDARD AND THE APPROPRIATE SCOPE OF
JUDICIAL REVIEW

The moving party is entitled to summary judgment if the record,
considered as a whole, "show[s] that there is no genuine issue as
to any material fact and the moving party is entitled to judgment
as a matter of law." See Fed.R.Civ.P. 56(c). In evaluating a
motion for summary judgment, the Court will construe the evidence
in the light most favorable to the nonmoving party and draw all
inferences in his or her favor. See Niagara Mohawk Power Corp.
v. Jones Chemical Inc., 315 F.3d 171, 175 (2d Cir. 2003). Here,
this Court's task in evaluating the motions for summary judgment
is two-fold.

Under the LMRDA, the Secretary has substantial discretion in
determining whether to bring a civil suit to challenge a labor
union election pursuant to 29 U.S.C. § 482(b). However, she is
"required" to initiate suit once she finds that election
irregularities "may have affected the election's outcome." See
Ellis v. Chao, 336 F.3d at 122 (describing the requirements of
29 U.S.C. § 482(b)). Her decision not to bring a civil suit in
response to a complaint is subject to judicial review. As a
preliminary matter, this Court must ascertain whether the facts
set forth in the Supplemental Statement of Reasons are
sufficiently specific and detailed to permit meaningful judicial
review. See Ellis v. Chao, 336 F.3d at 122-125; cf. Harrington v. Chao, (Harrington I) 280 F.3d 50, 60 (1st
Cir. 2002).

Once the Court determines that the Secretary has asserted her
reasons with sufficient specificity, the substance of defendant's
reasons is examined, but only to determine whether her decision
was "arbitrary, capricious, an abuse of discretion or otherwise
not in accordance with the law." See Dunlop v. Bachowski,
421 U.S. 560, 565, 95 S.Ct. 1851 (1975) (citing the standard of
review delineated in 5 U.S.C. § 706(2)(a)), overruled on other
grounds, Local No. 82 Furniture & Piano Moving v. Crowley,
476 U.S. 526, 104 S.Ct. 2557 (1984). Thus, the scope of judicial
review is "narrow," see Harrington I 280 F.3d at 56, and the
district judge must "refrain from substitut[ing] its own judgment
for that of the Secretary." See Dunlop, 421 U.S. at 572.

Thus, this Court's review seeks the answers to two questions:
(1) as to the allegations the Secretary deemed unsubstantiated,
whether it was plausible for her to draw the factual conclusions
she did on the basis of the investigation that her agency had
conducted; see Ellis v. Chao, 336 F.3d at 121; and (2) as to
the substantiated violations, whether it was rational for the
Secretary to find it improbable that any such violation "may have
affected the election's outcome." See id., at 122.

Ellis is entitled to summary judgment if this Court determines
the reasons that the Secretary offered for dismissal of his
administrative complaint are "so irrational as to [render her
decision] arbitrary and capricious." See id., 421 U.S. at
575; cf. Harrington v. Chao, (Harrington II) 372 F.3d 52,
58 (1st Cir. 2004) (explaining that an aggrieved union member is
entitled to summary judgment if the Secretary of Labor's decision
"falls within the narrow band of administrative determinations
that fail the deferential arbitrary and capricious test").
Conversely, the Secretary is entitled to summary judgment if this
Court finds she has offered plausible reasons for finding Ellis's allegations unfounded or
finding it improbable for them to have any likelihood of having
altered the outcome of the February 2000 election. Cf.
Harrington II, 372 F.3d at 63 (remanding for entry of summary
judgment for the Secretary of Labor because she offered a
plausible explanation for her decision).

III. DISCUSSION

A. Specificity of the Secretary's Supplemental Statement of
Reasons

At the outset, this Court must ascertain whether the
Supplemental Statement of Reasons possesses sufficient
specificity to permit meaningful judicial review and to overcome
the defects in the original Statement of Reasons that were
identified by the Second Circuit. As the Supreme Court observed,
"the basis of [an administrative decision] must be set forth with
such clarity as to be understandable. It will not do for a court
to be compelled to guess at the theory underlying the agency's
action; nor can a court be expected to chisel that which must be
precise from what the agency has left vague and indecisive." SEC
v. Chenery Corp., 332 U.S. 194, 196-97, 67 S.Ct. 1575 (1947).

The Secretary's Supplemental Statement of Reasons is based on
"a new review [of the] investigative record as it existed at the
time of the initial Statement of Reasons." See Supp. Stmt. at
2. It provides greater details regarding the investigation the
Secretary conducted. For example, it states that the Department
of Labor staff interviewed "union officials, and officials of
Burns International Security Services, Trustco Bank [custodian of
the ballots prior to and during the tally], True Ballot, Inc.,
NewKirk Products, Inc., the union's [election committee], union
members, observers and candidates," including Ellis. See id.
The investigation also included "review of the ballots, ballot
tally, and auditing process, the election documents, schematics
of the tally site, sample ballots, and a hand count of the number of ballots." Id. It did not include an
independent tally of the votes. See id. The Supplemental
Statement of Reasons also provides this Court with the
Secretary's findings as to the conduct of the election, including
information on the selection of True Ballot, on the vote tallying
process, and the audited results of the final vote tallies for
the four statewide offices. See id. at 3-6.

It also contains facts as to how the Department of Labor
investigated specific allegations of violations of the LMRDA and
the Secretary's reasons for deeming such allegations
unsubstantiated or unlikely to affect the outcome of the
election. For example, with respect to Ellis's allegations of
improper custody of the returned ballots, the Supplemental
Statement of Reasons contains statements of Trustco's employees
responsible for safekeeping those ballots during their interviews
with the Department of Labor investigators. See id. at 9. It
also addresses all allegations of violations contained in Ellis's
Amended Complaint. See Amended Complaint at ¶ 37-44.

Accordingly, the Supplemental Statement of Reasons has remedied
the defects of the original Statement of Reasons that were
identified by the Second Circuit. Furthermore, it offers a
detailed synopsis of the course of the Secretary's investigation
and a specific account of her factual findings and her
conclusions with respect to each of plaintiff's allegations.
While it does not provide information as to every detail and does
not address every possible contingency, see Plaintiff's
Statement of Undisputed Facts at ¶ 12-13 (asserting that a
13-vote discrepancy could possibly indicate more substantial
problems), it is nonetheless adequate to permit this Court to
engage in meaningful judicial review of the Secretary's decision.

B. The Secretary's Determinations as to the Accuracy of
Ellis's Allegations Plaintiff's 16 allegations fall into three broad categories: 1)
improprieties in the conduct of the election before vote tallying
began or resumed; 2) procedural improprieties during the vote
tallying process; and 3) incorrect tallying of the votes. This
Court will address the Secretary's findings as to the factual
basis of each category of allegations.

First, the Secretary's investigation did not substantiate any
of Ellis's allegations of improprieties in the conduct of the
election before vote tallying began or resumed. Those allegations
include violations of CSEA internal procedures due to the
designation on the printed ballots of Bill Walsh as an
"independent" candidate as well as Walsh's acceptance of
contributions from family and friends, over-mailing and duplicate
mailing of ballots, inadequate security for the returned ballots,
and True Ballot's lack of independence. In response to those
allegations, Department of Labor investigators reviewed CSEA's
electoral regulations, interviewed NewKirk employees, reviewed
the production reports regarding the mailing of the ballots, and
interviewed security personnel responsible for maintaining
custody of the ballots before tallying began and during the
12-day interruption due to lack of space. See Supp. Stmt. at
6-8. Based on those investigations, the Secretary found that (1)
neither the designation of Walsh as an "independent" candidate
nor his acceptance of funds from family members violated CSEA's
electoral regulations, (2) the ballots were mailed properly and
duplicate mailings were few and incidental, and (3) the security
of the ballots had been properly maintained throughout the
tallying process. See id. at 6-9.

This Court's task in its review of those conclusions is limited
to ascertaining the plausibility of the Secretary's conclusions
as to the inaccuracy of those allegations of misconduct, and not
the accuracy of the factual bases for her conclusions. The
extensive investigation undertaken, as detailed in the
Supplemental Statement of Reasons, clearly provided the Secretary with facts relevant to determine the
accuracy of the allegations set forth above. Furthermore, the
Secretary's conclusions as to those allegations are plausibly
based on the findings of her investigators. Accordingly, her
decision to dismiss those allegations is not arbitrary or
capricious.

Second, plaintiff's allegations regarding procedural
improprieties in the vote tallying process include adequate
oversight by the election committee, restrictions on observers'
rights, improper handling of the returned ballots, and improper
disclosure of preliminary results to an insurance representative.
In response, the Secretary's staff interviewed CSEA and True
Ballot employees regarding the participation of CSEA members in
tallying the votes. See Supp. Stmt. at 9. They also inspected
the conference room used for vote tallying, interviewed certain
of the observers, reviewed all the election records, and
interviewed staff responsible for opening returned ballots. See
id. at 9-10. Finally, they interviewed election committee
members, True Ballot employees and observers regarding the
premature disclosure of election results. See id.

The Secretary's investigations substantiated Ellis's first two
allegations but found the other two allegations inaccurate.
Specifically, defendant found that no impropriety resulted from
opening the outer envelopes to validate eligibility because the
actual votes had been contained in "an inner, secret ballot
envelope." See Supp. Stmt. at 12. The Secretary also found that
the premature disclosure of the election projection was not in
violation of union procedures because that disclosure had been
based on a projection shown on monitors located in the tallying
conference room and that the election committee clearly notified
observers that those projections were not the final results.
See id. at 15.

In light of the facts set forth in the Supplemental Statement
of Reasons regarding the scope of the Secretary's investigation, this Court finds that the
investigation was sufficiently comprehensive to uncover facts
relevant for making informed determinations as to the accuracy of
Ellis's allegations. Moreover, the Secretary's conclusions that
two of plaintiff's allegations were unsubstantiated were
plausibly based on the findings of her investigation.
Accordingly, her decision to dismiss those allegations is not
arbitrary or capricious.

Finally, Ellis's allegations regarding errors in the vote
tallying process include double counting several thousand votes,
improper inclusion of more than 2,900 ballots incapable of
validation, and inaccurate counts due to malfunctions and errors
in the tallying process. In response to those allegations, the
Department of Labor investigators interviewed CSEA officials,
employees of True Ballot and NewKirk, and observers present
during the tallying process regarding the initial automatic
tallying process, the procedures for determining the inclusion of
incomplete ballots, and the procedures for manual tallying. See
Supp. Stmt. at 9-11, 13-15. They also reviewed the ballots as
well as tally records and conducted independent hand counts of
the "voted ballots." See id. at 10.

The Secretary's investigation substantiated Ellis's second and
third allegations but revealed the first allegation to be
inaccurate. Specifically, she found that an initial, inadvertent
double scanning of approximately 8,000 ballots had been detected
quickly and was immediately rectified. See Supp. Stmt. at 12.
Thus the Secretary concluded that the final count did not include
any double counting of votes.

As the Supplemental Statement of Reasons illustrates, the
Secretary's investigation obtained facts regarding the double
counting from numerous individuals with direct knowledge of the
tallying process. Her conclusion is thus plausibly based on facts
gathered in her investigation and her decision to dismiss that
allegation as inaccurate is therefore neither arbitrary nor capricious.

C. The Secretary's Determinations as to the Sufficiency of
Substantiated Allegations

As discussed above, the Secretary substantiated, in whole or in
part, five of the 16 allegations of misconduct or errors that
Ellis maintained. Those allegations fall into four categories:
(1) restriction of observer access at the tallying site, (2) use
of CSEA staff members to assist in the vote tally, (3) scanning
of approximately 2,500 ballots that lacked signatures or
identification numbers, and (4) large fluctuations in the vote
counts between the initial projections and the final tally. The
Secretary concluded that it was improbable that any of those
instances of misconduct or error could have affected the outcome
of the election. This Court will address in turn the adequacy of
the reasons for her conclusions as to each substantiated
allegation.

First, the Secretary's investigation corroborated Ellis's
allegation that observers at the tallying site were confined to
"one area cordoned off for the observers," which made it
impossible for the observers to see the work taking place in the
room and effectively "denied the candidates the right to observe
the election." See Supp. Stmt. at 9. Furthermore, she explained
that her investigators' interviews with observers revealed that
employees of True Ballot and staff of the CSEA election committee
also failed to answer some questions from the observers promptly.
See id. at 9-10. According to the Secretary, those violations
led her investigators to conduct a close review of the election
records, extensive interviews with observers and staff, as well
as an independent hand count of all returned ballots.

As the result of her investigation, the Secretary found that
the number of ballots tallied and counted by True Ballot was
nearly identical to the result of her investigators independent
hand count. See Supp. Stmt. at 12. Furthermore, interviews also
showed that even if the observers had had full access, the use of high-speed,
automatic tallying machines made it impossible for them to assess
the accuracy of the initial tally. See id. at 11. Thus, the
Secretary concluded that the restriction of observers' access did
not materially affect the tallying process. She also noted that
any fraudulent tallying activity would have been revealed in a
discrepancy in the final vote count. Thus, she concluded that no
such misconduct had taken place. In addition, in light of the
margin of Donohue's victory, the Secretary also concluded that
any minor error could not have affected the outcome of the
election.

Plaintiff correctly observes that the text of the LMRDA and its
regulations reflects a clear legislative mandate to protect
observers' rights in labor union elections in order to ensure
union democracy. Thus, he urges this Court to disregard the
Secretary's conclusion and to hold that legislative intent as
sufficient support for the conclusion that the limitations on
observers' rights might have affected the outcome of the
election. However, this argument conflates two distinct
inquiries: the extent of protection for observers' rights and the
actual consequences of restriction of such rights for the
integrity of a union election. See Donovan v. Local 6,
Washington Teachers' Union, 747 F.2d 711, 717-18 (D.C. Cir.
1984) (upholding the Secretary of Labor's discretion to conclude
that, based on his independent investigation, allegations of
restrictions on observers' rights "could not have affected the
outcome of the election"). Because the Secretary has offered
several independent reasons, based on facts uncovered in her
investigation, for precluding the possibility that the
restriction of observers' rights caused any material error or
misconduct that might have affected the election's outcome, her
conclusion is rational and neither arbitrary nor capricious. Second, the Secretary's investigation corroborated Ellis's
allegation regarding the use of CSEA staff members in the tally.
Specifically, the contract between CSEA and True Ballot
stipulated the union staff, instead of unaffiliated, temporary
employees, would be provided to assist True Ballot with the
tally. She also found that the names of those CSEA staff members
had never been provided to True Ballot. However, her
investigators' interviews with True Ballot employees and members
of the CSEA election committee revealed that the CSEA staff
members were always under the supervision of the election
committee during the tally. See Supp. Stmt. at 13. Interviews
with observers also did not uncover any indication of misconduct
or tampering. See id.

Thus, the Secretary concluded that the inclusion of CSEA staff
in the vote tallying process did not result in a violation of
LMRDA. Ellis asserts that the CSEA staff members were largely
unsupervised when they participated in the tally and that that
lack of oversight could have affected the outcome of the
election. However, although the Secretary has not identified the
precise basis for her conclusion as to why the use of CSEA staff
could not have affected the election outcome, the totality of
facts presented in the Supplemental Statement of Reasons makes it
clear that her investigation revealed adequate supervision of
those staff members during the tally. Moreover, in light of both
Donohue's sizable margin of victory and the Secretary's findings
as to the overall integrity of the tally, it is reasonable to
infer that any possible procedural errors would have been minor
and could not have affected the election outcome. Accordingly,
the Secretary's decision not to initiate suit on the basis of the
participation of CSEA staff members in the tally is rational and
neither arbitrary nor capricious.

Third, the Secretary's investigation corroborated Ellis's
allegation regarding the inclusion of more than 2,000 returned ballots, which could not be
properly authenticated, in an initial scanning. Department of
Labor investigators further found that the election committee,
out of concern for protest from the CSEA membership, decided to
scan approximately 2,500 of those ballots that contained a vote.
See Supp. Stmt. at 12-13. However, interviews with True Ballot
employees and with members of the election committee, in addition
to the Secretary's investigators' independent hand count, showed
that those votes were never tallied. See id. Thus, those
votes were not included in the final count.

The Secretary concluded that those actions did not amount to a
violation of the LMRDA. She considered two possible LMRDA
violations  the initial scanning of the ballots and their
subsequent exclusion from the tally. Because the ballots that had
been initially scanned were never tallied, they could not have
affected the election outcome. Moreover, she found that because
the exclusion of ballots was due to their lack of proper
authentication and because their exclusion was carried out in a
consistent, rather than discriminatory, manner, that procedure
was also not in violation of the LMRDA and could not have
affected the election outcome.

Ellis contends that the Secretary's failure to conduct an
independent tally of the votes obligates her to conclude that the
exclusion of more than 2,000 ballots "may have affected the
outcome of the election." See Declaration in Support of
Plaintiff's Motion for Summary Judgment at 7-8. While an
independent tally would have undoubtedly been helpful, this Court
must defer to the Secretary's choice to rely on interviews and
other alternative investigative methods. See Dunlop, 421 U.S.
at 572-73. Because her conclusion that the exclusion of certain
ballots is reasonably based on her factual findings regarding
Donohue's substantial margin of victory, the legitimate purpose
of excluding those ballots, and the consistent manner in which their exclusion had been carried out,
this Court concludes that the Secretary's decision is rational
and neither arbitrary nor capricious.

Finally, the Secretary's investigation corroborated Ellis's
allegation regarding the fluctuation in the projections of the
number of votes each candidate for statewide presidency received.
Specifically, interviews with observers revealed that on February
9, monitors in the tallying room showed that Ellis would receive
approximately 15,800 votes and Donohue would receive
approximately 22,000 votes. See Supp. Stmt. at 14. The final,
audited results, however, were 13,707 votes for Ellis and 19,061
votes for Donohue.

The Secretary's investigation revealed that a discrepancy
between the printed format of the ballots and the design of the
scanning machines resulted in the problem of "box drift," i.e.
some images were scanned and recorded twice while others were not
scanned or recorded at all. The Secretary's investigators
interviewed members of the election committee and True Ballot
employees, as well as the observers, to ascertain that the "box
drift" problem had been adequately corrected by erasing the
original records and re-scanning the images. See Supp. Stmt. at
13-14. Thus, although the Secretary did not conduct an
independent tally of the more than 38,000 ballots, see id. at
14, she concluded that the election staff provided a convincing
explanation for the discrepancy between the initial projections
and the audited final tally and that an adequate effort was made
to remedy that error.

The Secretary's determinations as to the error and the remedy
in the vote tallying process are highly plausible. Furthermore,
considering the consistency of the margin of victory in the
initial projections and the final audited result, it was
reasonable for her to conclude that the discrepancy between the
initial projection and the final audited result could not have
affected the outcome of the election. Accordingly, the
Secretary's decision not to initiate suit based on the discrepancy between the initial
projections and the final vote tally is reasonable and neither
arbitrary nor capricious.

IV. CONCLUSION

For the reasons set forth above, this Court finds that the
Secretary's decision to dismiss plaintiff's administrative
complaint instead of initiating a civil suit to challenge the
February 2000 CSEA election was not "arbitrary, capricious, an
abuse of discretion or otherwise not in accordance with the law."
See Dunlop, 421 U.S. at 565-6 (citing the standard of review
delineated in 5 U.S.C. § 706(2)(a)). Accordingly, the Secretary's
motion for summary judgment is granted and plaintiff's motion for
summary judgment is denied.

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